Gujarat High Court
Jilubhai Bothabhai Dantani vs State Of Gujarat on 5 August, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 774 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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JILUBHAI BOTHABHAI DANTANI
Versus
STATE OF GUJARAT
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Appearance:
DR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 05/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This Criminal Appeal preferred by the appellant-accused under Section 374(2)of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 26.02.2014 passed by the Additional Sessions Judge, Kalol, Panchmahal at Godhra in Sessions Case No. 27 of 2012, by which the appellant has been convicted under Sections 302 of the Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default thereof, Page 1 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined further simple imprisonment of 1 month.
2. The case of the prosecution leading to the conviction of the appellant Jitu Botha Dantani is as follows:
The accused appellant has killed his wife Chandrika causing her head injury with wooden log. The offence of murder came to be registered with Kalol Police Station being I. CR. No. 44 of 2012, under Section 302 of the IPC. The prosecution case in brief is that, the appellant and his wife Chandrika had a matrimonial dispute and their relations were no cordial. The husband wife resided in a makes-ship house in the compound of Calico Mill at Kalol. On 24.04.2012, the dispute with regard to cooking of the milk arose between the husband-wife, as a result of which, the heated exchange of words and fights took place between them. The accused appellant on account of said dispute, lost his control and took the wooden log lying on the house and inflicted blow on the head of the deceased, which resulted into instantaneous her death. The incident of murder took place at about 10-00 pm. The brother of the deceased Lalubhai Dantani - PW-21, upon receiving the information about the death, rushed to the place of incident and lodged an FIR, inter-alia, alleging that the appellant had killed the deceased by wooden log. The appellant accused came to be arrested. The IO of the case PW-22 proceeded to investigate the case and during the course of investigation, at the instance of the accused recovered and seized the wooden log, prepared a panchnama of scene of offence, sent the body for the Postmortem, recorded the statements of the witnesses, sent the seized articles to the FSL and obtained the necessary Page 2 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined examination reports from the FSL and thereafter, he found sufficient materials for the charge against the accused and accordingly, chargehsheet came to be filed before the jurisdictional Magistrate Court. The case was committed to the court of Sessions at Kalol, Panchmahal and same was culminated into Sessions Case No. 27 of 2012.
3. The Additional Sessions Judge, Kalol, framed the charges against the appellant.
4. In order to prove the charge, the prosecution examined as many as 25 witnesses and exhibited 15 documents.
Oral evidence PW 1 - Exh.8 Rajubhai Jeevabhai Patel, Panch witness PW 2 - Exh.10 Rekhabhen Mukeshbhai Dantani, Panch witness PW 3 - Exh.11 Bakulbhai Dhirubhai Nayak, Panch witness PW 4 - Exh.13 Firozkhan Anwarkhan Pathani, Panch witness PW 5 - Exh.17 Baldevji Dilaji Thakor, Panch witness PW 6 - Exh.18 Salimbhai Dadabhai Malik, Panch witness PW 7 - Exh.22 Salimbhai Mehmoodbhai Malik, Panch witness PW 8 - Exh.23 Jagdishbhai Nanjibhai Takni, Medical officer PW 9 - Exh.27 Rajubhai Gabhaji Thakor, Panch witness PW 10 - Exh.30 Samarthben Bhagabhai Dantani, Panch witness PW 11 - Exh.31 Babuji Shanaji Thakor, Panch witness PW 12 - Exh.32 Munniben Rajubhai Dantani PW 13 - Exh.33 Baldevbhai Bhalabhai Dantani PW 14 - Exh.34 Jisiben Baldevbhai Dantani PW 15 - Exh.35 Ketanbhai Bakabhai Dantani PW 16 - Exh.37 Tinubhai Gelabhai Vaghela PW 17 - Exh.38 Gudiben Tinabhai Vaghela PW 18 - Exh.39 Vidhyaben Kanubhai Dantani PW 19 - Exh.40 Jashuji Manuji Vaghela, PSO PW 20 - Exh.46 Parsotambhai Jivabhai Makwana, PSO PW 21 - Exh.47 Lalubhai Bhalabhai Dantani, Complainant Page 3 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined PW 22 - Exh.50 Rajesh Gopaldas Bhavsar, Investigating Officer Documentary evidence Exh.9 Inquest Panchnama Exh.12 Panchnama of place of offence Exh.14-16 Panchnama of clothes recovered of deceased Exh.19-21 Panchnama of clothes of accused Exh.24 PM Yadi Exh.25 PM Note Exh.26 Death Certificate Exh.28-29 Panchnama of weapon Exh.41 Polce Yadi Exh.42-43 Station Diary copy and FIR Exh.44-45 Telephone Varghi Exh.48 Complaint Exh.51 Inquest Yadi Exh.52-60 Test report of FSL Exh.61 Copy of proclamation of ban of arms
5. After closure of the prosecution evidence, the statement of the appellant accused under Section 313 of the Cr.P.C, was recorded, to which, he pleaded his false involvement.
6. Despite due opportunity given to the accused, he has not led evidence in his defence.
7. After hearing the parties and upon appreciation of evidence, the learned trial Court, found guilty the accused for the offence of murder and sentenced him to undergo life imprisonment. The learned trial Court, has relied upon the evidence of hostile witness PW-10 Samrathben, who happened to be a sister-in-law of the Page 4 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined accused and also considered the facts that, at the time of incident, the husband-wife were alone in the house and it was the duty of the husband to explain that what was the cause of the murder and who had killed the deceased and therefore, the learned trial Court, by invoking Section 106 of the Evidence Act, inferred that the accused is the author of the crime.
8. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the accused - appellant has come up with the present appeal.
9. We have heard Dr. Hardik Raval, learned advocate appearing for the appellant accused and Mr. L. B. Dabhi, learned Additional Public Prosecutor for the respondent-State.
10. Mr. Hardik Raval, learned advocate, assailing the judgment of conviction and order of sentence, submitted that, the court below committed serious error in convicting the accused, as there is no direct evidence to prove the charge against the accused. The PW-10
- Samrathben in her testimony had clearly stated that, when she wake up in the morning, she learnt that, the accused had killed her wife deceased Chandrika. The prosecution declared her hostile and during her cross-examination, she did not have supported the case of the prosecution. The other witnesses does not have a personal knowledge of the incident. The panchas of the recovery weapon did not have supported the factum of recovery and the IO failed to prove the contents of the panchnama. In such circumstances, before the Page 5 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined trial Court, as such, there is no evidence either direct or circumstantial to connect the accused in the commission of crime. Despite of these, the learned Court below have misread the evidence and misinterpreted Section 106 of the Indian Penal Code. Thus, in absence of any legal evidence to convict the appellant, the learned trial Court taking moral view and on the basis of conjuncture and surmises, held guilty the accused, which cannot be sustainable in eye of law.
11. Mr. Raval, learned counsel appearing for the appellant, vehemently submitted that even if the entire case of prosecution is believed to be true, the case at the most would be one of culpable homicide not amounting to murder, as there was no intention on the part of the accused to kill the deceased and in view of the matrimonial dispute between the husband and wife and on the day of incident, there was a quarrel on the issue of cooking milk.
12. In such circumstances referred to above, the learned counsel prays that there being merits in the appeal and same may be allowed and the appellant be acquitted of all charges. In the alternative, he prayed that the conviction may be altered from one under Section 302 of the Indian Penal Code to Section 304 Part-I of the Indian Penal Code.
13. Mr. L. B. Dabhi, learned Additional Public Prosecutor on the other hand has vehemently opposed the appeal submitting that the trial Court while convicting the appellant has not committed any error either on facts or on law and has rightly evidence appreciated the Page 6 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined evidence in its true prospective and therefore, he prays that there being no appeal and same may be dismissed. So far as, alternative prayer is concerned, it was submitted that, the injuries found on the body of the deceased were on vital part and the manner in which, the blow was inflicted, it cannot be inferred that there was no intention on the part of the accused to kill the deceased.
14. Before dealing with the rival contentions of the parties, for a limited purpose, it would be useful to analyze the evidence of material witnesses:
14.1 PW- 8 PW-8 Dr. Jagdish Tank, who had conducted the postmortem on the body of the deceased, has stated that, during the postmortem, he found the following external injuries on the body of the deceased :
(i) fracture of right humorous;
(ii) defused hematoma on the upper part of the chest and at the left forearm and left shoulder;
The Doctor also found the internal injuries on the head of the deceased and noted the same in column no. 19 of the PM report i.e. the injuries in the nature of CLW (5 cm x 2 cm on the occipital of scalp and defused hematoma at left temporal region and occipital region beneath the scalp.
According to opinion of the doctor, the cause of death was haemorragic and neurogenic shock due to brain injury. The doctor Page 7 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined has further opined that the injuries were sufficient to cause death in ordinary course of nature.
14.2 The prosecution has examined PW-12, 13, 14, 15, 16, 17, 18, who are near relatives of the deceased and all the witnesses have no personal knowledge about the occurrence of the incident and therefore, the witnesses not being eye-witnesses, there is no need to discuss in detail their testimonies.
14.3 PW-21 Lalu Dantani being a brother of the deceased and complainant of the case, has stated on oath that, on receiving the information from the relatives, he came to know about the death of her sister.
14.4 PW-10 Samrathben Dantani; the witness is the sister-in-law of the accused and residing near his house. The version of the witness is that, on the day of incident, due to her work, she was exhausted and after taking the dinner, she went into sleep. The witness has further stated that, when she woke up in the morning, she learnt that the appellant had killed Chandrika. In such circumstances, the prosecution has declared her as hostile witness and during the cross- examination, she did not adhere to the facts of incident, which she had disclosed in her statement recorded by the police. The only eye- witness has not supported the case of the prosecution.
14.5 PW- 11 Babuji Thakore and PW-9 Rajuji Thakore being a witness of discovery panchnama Exh. 28, have not supported the factum of discovery and recovery of the weapon.
Page 8 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined 14.6 PW-22 Rajesh Bhavsar; the witness was posted as Police Inspector of the Kalol City Police Station and was entrusted with the investigation of the case. During the course of investigation, the witness had arrested the accused, sent the dead body for postmortem and discovered and recovered the weapon. So far as discovery is concerned, the IO in his deposition, referred in a casual manner the proceedings of discovery and recovery of the weapon and failed to prove the contents of the panchnama Exh. 28. In the cross- examination, nothing being brought on record by the defense.
15. So far as issue of homicidal death is concerned, the learned trial Court has rightly held that the death of the deceased was homicidal and we are affirming the findings of the trial Court.
16. In the facts of the present case, the prosecution mainly relied on the evidence of discovery and testimony of PW-10 Samrathben. We have carefully examined the testimony of PW-10 Samrathben. She did not support the case of the prosecution. Despite of this, the trial Court has observed that, she had saw the incident. In our opinion, the testimony of Samrathben is not at all considered to be an eye- witness of the incident. We are conscious about the settled law on the evidence of hostile witness. The Apex Court in its various judgment, held and observed that, the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident and the evidence of such witnesses cannot be treated as washed off the records. It Page 9 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined remains admissible in trial and there is no legal bar to base the conviction of accused upon such testimony, if corroborated by other reliable evidence. The witness PW-10 has specifically stated in her chief-examination that, on the day of incident, after selling vegetables in the market, she came late and went it to sleep because she was exhausted. So far as incident part is concerned, she has not deposed a single word against the appellant accused that, when incident occurred, she was present and the accused was assaulting his wife. She only deposed that, when in morning, when she woke up, she came to know that the accused has killed Chandrika. In such circumstances, it cannot be said that, PW-10, in her chief- examination or cross, has supported the prosecution version of the incident. The other witnesses who came later on, did not have any personal knowledge about the incident. Thus, we have no hesitation to held that, no reliance can be placed upon the testimony of PW-10 to prove the facts that on the day of incident, the accused had assaulted his wife.
17. Now let us deal with the contention of evidence of discovery and recovery. In the present case, after the incident, the accused when arrested, the police on his voluntary disclosure statement, discovered the weapon allegedly used in the commission of offence. The panch witnesses of the discovery panchnama Exh. 28, have been declared hostile and totally they have not supported the factum of the discovery of the weapon and disclosure statement. The Investigating Officer PW-22 in his testimony, has not stated that the appellant accused on his own free will and volition made a statement that he Page 10 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined would like to point out the place where he had hidden the weapon (wooden log), We may profitably refer the case of Bodhraj @ Bodha & Ors. Vs. State of Jammu & Kashmir reported in 2002(8) SCC 45. In para-18, the Supreme Court held thus :
"18.....It would appear that u/s. 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible u/s. 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible u/s. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in sec. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled Page 11 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya V/s. Emperor, is the most quoted authority for supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
Coming to the facts of the present case, neither panchas nor Investigating Officer have stated on oath that, the accused while in the custody, has on his own free will and volition, made a statement that he would like to point out the place, where he had hidden the wooden log. Thus, it is evident that the contents of the panchnama Exh. 28 has not been proved in accordance with law. In that view of the matter, we have reached to the conclusion that evidence of discovery of the weapon at the instance of disclosure statement of the accused, cannot be read against the accused as admissible substantive evidence.
18. It is the contention of the defense that the trial Court by invoking Section 106 of the Evidence Act, raised the inference that, it was the accused to explain how death occurred, because at relevant time, the husband-wife were alone in the house. This observation, according Page 12 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined to submission of learned advocate Mr. Raval, is palpably wrong and in utter disregard to the settled position of law, because, the initial burden to establish the case against the accused rests on the prosecution, till then, the question does not arise to explain the manner of incident by the accused. We have carefully examined the evidence on record and findings recorded by the trial Court. When the offence committed within the four walls of the house, it is difficult for the prosecution to get direct evidence on the aspect of crime and therefore, with the aid of Section 106 of the Evidence Act, it is the accused to explain. This is because the circumstances of the case would be "especially within the knowledge of the accused". However, the Supreme Court in number of cases held and observed that, section 106 of the Evidence Act will apply to those cases, where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, which are within the special knowledge of the accused. (Nagendra Saha Vs. State of Bihar, (2021) 10 SCC 725). In case of Tulsiram Sahadu and others Vs. State of Maharashtra (2012) 10 SCC 373 , the Supreme Court, clarified that, the section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt it would apply to the case where the prosecution has succeeded in proving the case, from which, a reasonable inference can be drawn regarding the existence of certain other facts. In light of the aforementioned position of law and applying the same to the facts of the present case, the initial burden proving the charge against the accused is not proved, as the discovery of weapon at the behest of the accused has Page 13 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025 NEUTRAL CITATION R/CR.A/774/2015 JUDGMENT DATED: 05/08/2025 undefined not been proved, the so called eye-witness PW-10 turned hostile and therefore, initial burden to establish the case against the accused has not been proved by the prosecution and till then, merely non- explanation of the accused about what happened at the night, does not require to draw an appropriate inference that, he has committed the murder of his wife.
19. For the foregoing reasons and analysis, we are satisfied that the prosecution has not been able to prove its case beyond reasonable doubt the guilt of the accused and court below while convicting the accused, fall in error in coming to the conclusion that, the case against the accused established beyond all reasonable doubt.
20. In the result, the appellant accused in this appeal is entitled to succeed. Consequently, the appeal is allowed. The impugned judgment and order of conviction dated 26.04.2012 passed in Sessions Case No. 27 of 2012 rendered by Additional Sessions Judge, Kalol at Panchmahal is set aside. The appellant is in jail and jail authority shall release him forthwith, unless his custody is necessary in any other offence. The Registry shall send the R&P to the concerned court forthwith. Direct service permitted.
(ILESH J. VORA,J) (P. M. RAVAL, J) P.S. JOSHI Page 14 of 14 Uploaded by P.S. JOSHI(HC00177) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:48:30 IST 2025